If an employee is injured during the course of employment, thenthat employee, as least in most circumstances, will receive thescheduled workers' compensation benefits. So what happens if theemployee is pregnant at the time of injury and the fetus isinjured? Does the fetus have a right after birth to sue theemployer, or is workers' compensation the exclusive remedy?

Some courts have addressed this issue and, of course, the answervaries with the jurisdiction. One example is Snyder v.Michael's Stores, Inc., 945 P.2d 781 (1997), a CaliforniaSupreme Court decision. In this case, the parents of a minor suedthe mother's employer on behalf of the child, seeking damages forphysical injuries resulting from the employer's negligence. Theminor's lawsuit claimed she was injured in utero when the motherwas exposed to and breathed in carbon monoxide in amounts that weretoxic to both mother and fetus.

The trial court barred the lawsuit on the grounds that WC wasthe exclusive remedy. On appeal, the California Supreme Court notedthat the only question was whether the fetal injuries occurring atthe mother's workplace were remedied solely, if at all, through theworkers' compensation system.